Xiloj-Itzep v. City of Agoura Hills

• Decision Date: 28 April 1994
• Docket Number: XILOJ-ITZEP,No. B067188,B067188
• Court: California Court of Appeals Court of Appeals
• Parties: Juanet al., Plaintiffs and Appellants, v. CITY OF AGOURA HILLS et al., Defendants and Respondents.

Page 879

29 Cal.Rptr.2d 879

24 Cal.App.4th 620

Juan XILOJ-ITZEP et al., Plaintiffs and Appellants, v. CITY OF AGOURA HILLS et al., Defendants and Respondents.

No. B067188.

Court of Appeal, Second District, Division 7, California.

April 28, 1994.

Rehearing Denied May 19, 1994.

Robin S. Toma, Paul L. Hoffman, Mark D. Rosenbaum, Michael J. Ortiz, Vibiana Andrade, Thomas A. Saenz, Niels Frenzen, Edward J. Flynn, Linton Joaquin, Los Angeles, for plaintiffs and appellants.

DeWitt W. Clinton, County Counsel, Anthony P. Serritella, David J. Olivas, Gregory W. Stepanicich, City Atty., Richards, Watson & Gershon, Rochelle Browne and Kevin G. Ennis, Los Angeles, for defendants and respondents.

FRED WOODS, Associate Justice.

I. INTRODUCTION

This appeal arises from the unsuccessful attempt of plaintiffs in the trial court to preliminarily enjoin enforcement of defendant City of Agoura Hills' ("City") ordinance which regulates solicitation from persons traveling in vehicles on City streets ("Ordinance").

II. CONTENTIONS

Appellants contend the Ordinance was adopted to prevent them from seeking day work in the City and prevents them from congregating on City sidewalks in violation of their First Amendment rights, the equal protection clause and the right to work.

City contends that as the Ordinance prohibits all solicitation of sales, business, contributions and work from persons travelling in vehicles on City streets, it is directed at conduct which poses a threat to public safety and the free flow of traffic on City streets, rather than speech or message. City contends that since the prohibited conduct can be determined without regard to the content of speech, the purpose of the solicitation or the identity of the solicitor and applies only to vehicle-addressed solicitation, the Ordinance suffers from no constitutional impediments and is enforceable.

County joins in the City's contentions that the Ordinance is not facially invalid and further contends that the Los Angeles County Sheriff's Department did not engage in unconstitutional enforcement of the Ordinance.

III. FACTUAL AND PROCEDURAL SYNOPSIS

The City is a small residential community with only limited commercial areas providing neighborhood services. Until recently, the City had not experienced any of the problems that have occurred in other cities on its streets or sidewalks with commercial transactions However, in late 1989 and early 1990, large numbers of men, up to 100 a day, began congregating at the intersection of Kanan and Agoura Roads in the City, apparently in the hope of obtaining day work. The City then began receiving complaints concerning certain conduct by some of the men who were congregating near that intersection. These complaints included running out into traffic, swarming cars, distracting motorists who made sudden swerves and stops to respond to them and interfering with ingress and egress to the parking lot of the small shopping center (a Jack-in-the-Box, an International House of Pancakes, a travel agency, a Mexican restaurant, and a beauty salon) at that intersection.

such as the vending of [24 Cal.App.4th 626] food and flowers to motorists or seeking contributions or work from motorists. For that reason, it had not adopted any regulation of vehicle-addressed solicitation.

There also were complaints from some of the men who sought day work that employers failed to pay them, as well as instances of littering, fighting, drinking, public urination and defecation in the parking lot, cat-calling at women and use of shopping area and nearby areas for sleeping and living encampments. There was an accident related to solicitation of work at the intersection before the ordinance was adopted.

Mindful of the difficult economic circumstances which cause men to seek day work and hopeful of finding solutions that would address both the needs of men seeking work and the health and safety concerns of the community, the City established an ad hoc task force and held public meetings to receive input and suggestions. Counsel for appellants and the men who congregate at the site were invited to participate. City staff members were also directed to investigate the manner in which other cities dealt with similar problems.

As a result of the initial input received at those meetings and input from City staff and the Sheriff, the City established a hiring site with the help of a local property owner who donated a site near the intersection of Kanan and Agoura Roads. It opened in August of 1990 and the City provided portable toilets, drinking water and a volunteer coordinator. The City also arranged for a food truck to stop at the hiring site. However, only a few of the men obtained work through the site and large numbers of them continued to congregate in and adjacent to the shopping area at Kanan and Agoura Roads and to run into traffic, swarm cars and interfere with use of the shopping area.

The final reports of the ad hoc task force and of City staff were presented to the City Council at public meetings on January 16, March 13, and March 27, 1991. Based on those reports, the City approved placement of no stopping signs in the area of the intersection as recommended by the City's traffic engineer. This was done to discourage prospective employers from illegally and dangerously swerving and stopping in response to men hailing them or running out into the street. Employers were able to use the parking lot and other areas of the street to park legally and hire a day worker.

The City also established a telephone hiring exchange in order to assist men in finding day work. Employers who need day workers can call to find men looking for work, and men seeking work need simply leave their name, the type of work they can do and a number at which they can be reached. If they do not have a phone, they can call in to the exchange and may do so from a pay phone. The exchange opened in April of 1991 and is still in operation. The hiring site, which had not been effective either in helping men to find work or in resolving health and safety problems during the nine months of its operation, was closed at the same time. The City found that no more than 15 out of 100 men obtained day work in the City on any given day; this fact was true both before establishment of the hiring site and while it was in operation.

The City also adopted Ordinances Nos. 172 and 183 in March of 1991 to prohibit vehicle-addressed solicitation. The following findings were set forth in Sections A through E of Ordinance No. 172:

"A. Large groups of persons congregate in areas within the City on a daily basis and solicit or attempt to solicit employment, business "B. The activity of soliciting employment, business or contributions from occupants of vehicles distracts drivers from their primary duty to watch traffic and potential hazards in the road, observe all traffic control signals or warnings and prepare to move through the City's streets and intersections; and

or contributions from the occupants of vehicles on certain city streets; and

"C. The practice of soliciting employment, business or contributions from occupants of vehicles as discussed above, impedes the flow of traffic on the streets within City, results in the delay and obstruction of the public's free flow of travel, and results in congestion and blockage of the streets, driveways to parking areas, and sidewalks when such persons approach the vehicles to negotiate with the occupants; and

"D. Distracted drivers are more prone to automobile accidents, and accidents on the public streets constitute a substantial traffic safety problem which problem further impedes and prevents the orderly flow of traffic, is unsafe for the person engaging in the solicitation, pedestrian traffic, and the traffic generally; and

"E. The cumulative impact of this type of activity on the City's streets, highways and sidewalks on a daily basis has created a potential safety hazard, which poses a significant and substantial risk to the interest of the public in the free flow of travel in the City."

On July 24, 1991, the City replaced Ordinances 172 and 183 with Ordinance No. 91-191, ¹ which is codified at sections ² 3208 through 3210 of the Agoura Hills Municipal Code. The provisions of Ordinance No. 91-191 are similar to those adopted in March of 1991, and the City's purpose--health, safety and the free flow of traffic--in adopting the regulations remained the same. However, Ordinance No. 91-191 contained definitional clarifications.

Ordinance No. 91-191 provides:

"ORDINANCE NO. 91-191

"AN ORDINANCE OF THE CITY OF AGOURA HILLS RELATING TO THE SOLICITATION OF EMPLOYMENT, BUSINESS OR CONTRIBUTIONS OF MONEY OR OTHER PROPERTY WITHIN THE CITY, AMENDING THE AGOURA HILLS MUNICIPAL CODE AND DECLARING THE URGENCY THEREOF

"The City Council of the City of Agoura Hills does hereby ordain as follows:

"Section 1. Article III, Chapter 2 of the Agoura Hills Municipal Code is hereby amended by amending Sections 3208 and 3209 to read:

" '3208 Definitions. For the purposes of Sections 3209 and 3210, the following meanings shall apply:

. . . . .

"(b) 'employment' shall mean and include services, industry or labor performed by a person for wages or other compensation or under any contract of hire, written, oral, express or implied.

"(c) 'solicit' shall mean and include any request, offer, enticement, or action which announces the availability for or of employment, the sale of goods, or a request for [funds]; or any request, offer, enticement or action which seeks to purchase or secure goods or employment, or to make a contribution of money or other property. As defined herein, a solicitation shall be deemed complete when made whether or not an actual employment relationship is created, a transaction is completed, or an exchange of money takes place.

"3209 Prohibition of Solicitation in Public Right-of-Way.

"(a) It shall be unlawful for any person,...